Wednesday, February 17, 2010

CPSIA - ICPHSO Update (Remarks of Cheri Falvey, General Counsel)

The annual ICPHSO conference in Washington, D.C. takes place this week, and today is "CPSC Day". The first speaker was Cheri Falvey, the General Counsel of the CPSC.

She recommends that we "get over" the testing requirements and start to focus on the public database. Hmmm.

Other salient points:
  • Stay on testing and certification doesn't mean you can stop testing. This is a simple point - you need to comply with the standards, and if you don't test, you won't know. No shock here, and presumably, not an issue for responsible companies.
  • No certification will be required on tracking labels. This is "definitive".
  • Component testing WILL be allowed but final rule is not available. Interim guidance permits it.
  • Lead exclusions relieve you from testing. Good news for all you ruthenium users!
  • Phthalate testing is ONLY required for "plasticized component parts" and paints. This is news to me - do any of you know where this is written? In any event, this is literally what Falvey said, so tell your testing labs. Please note that this means you DON'T have to test the entire product.
  • The CPSC staff is still working on inaccessible components for phthalate tests. That said, you STILL need to test inaccessible parts for phthalates until they figure out how to give you a pass.
  • The CPSC has "gotten incredibly positive feedback" on the new public database. This means your silence is being taken as your tacit approval. Happy?
  • 48 Federal Register notices have been published by the CPSC since the awful CPSIA was passed. Bureaucrats everywhere take note: that's some serious paper pushed.
  • Mandatory recalls require disclosure of factory identity. Whether this applies to voluntary recalls has not been determined.
  • Several rules to come out in the next four weeks: Civil penalties, meaning of "Children's Products" under CPSIA and the meaning of "Toy" and "Child Care Articles" under the CPSIA. The big issue for "Children's Product" is how to deal with the "intent" aspect of the rule, and she is focusing on the "primary" intention of the "manufacturer". The definition of "Toy" may diverge from the ASTM F963 definition. She seems to be hinting that the definition of "Toy" may be BROADENED ("things made for children").
  • They will also bring out rules on "public accommodation" under the Virginia Graeme Baker Pool and Spa Safety Acts, as well as process and procedures for the awful Public Database.
  • The Public Database will "increase the pressure" on the agency to "run down everything". So the Public Database is projected to be used to create a more rigid and unforgiving system, a tacit strict liability safety regime. Happy? Think of the first Tuesday in November.
  • CPSC is discussing cadmium with State AGs and is studying the current voluntary standard for cadmium or other heavy metals in the surface coatings of toys. They are looking at whether to drive the standard into the substrate. Book it, Danno!
  • Chemical regulation is coming. BPA is an example of the beginnings of this effort. They are looking at whether the rules on cadmium and other metals as a maximum soluble migrated element test (EN71) total content test (a la lead-in-substrate). The agency wants feedback on this.
  • Dialogue with State AGs are ongoing and joint efforts are being considered. Not sure if this is good or bad, but it has the potential to reduce the risk of wild cards. That said, the State AGs are often wacky on safety and so there is a lowest common denominator risk here.

I have omitted Falvey's comments on cribs, drywall and other issues tangential to the issues discussed in this space over the last year.

Falvey didn't mention anything about the impact of these many new rules on the marketplace. That seems to not be her concern. I certainly hope this doesn't mean she is oblivious to the issue. I know our CFO and sales reps aren't. She did articulate a system to put an end to small businesses however, when she urged us to think about tracking labels on everything, integrating certifications, testing, labels. No mention of what this would achieve or why it would be worth the expense (the top priority for devotion of our limited capital) or how small businesses could start up in this environment. Love them Democrats! Think of this as their latest jobs program.

One thing she was seemingly obsessed with is Twitter. She brought up the possibility that we were tweeting perhaps ten times. Does this mean she knows we're going to tell you what she said, or that she resents it? Not clear. It may have been funny the first time she did it (may . . . have . . . been) but it wasn't funny as she repeated herself. Intimidating free speech is unbecoming for a General Counsel.

The negatives in her presentation seems to confirm the increasingly political nature of the CPSC where safety is a secondary concern to political winds. Is phthalates such a danger that it needs to be driven out of all children's products? The provision made its way into the law because of the work of Diane Feinstein, not a well-known scientist. Now this Californiazation effort has taken on a life of its own. Get used to creep in these rules. That's the conclusion I reach from listening to Falvey.

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